EU Immigration and Asylum Law and Policy Droit et Politique de l'Immigration et de l'Asile de l'UE

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By Professor Kees Groenendijk, Radboud University Nijmegen and Professor Elspeth Guild, Queen Mary University of London

Introduction

The human rights of children are universally proclaimed and the subject of solemn declarations by all levels of state officials. But, when it comes to unaccompanied minor asylum seekers, their status as children is all too often forgotten by European states which tend to focus exclusively on their status as asylum seekers. This trend is most clearly apparent in the refusal of so many European states to actually ban the detention of asylum seeking children. Instead, in their legislation (including EU legislation like Article 11 of reception conditions directive) they insert weasel phrases like “unaccompanied minors shall be detained only in exceptional circumstances. All efforts shall be made to release the detained unaccompanied minor as soon as possible.”

On 12 April 2018, the Court of Justice of the European Union upheld the human rights of children to be joined by their parents, rejecting siren calls to leave such matters to the discretion of Member States and their officials. In its ruling  in case C-550/16 A & S ,  the Court held namely that the provision of Directive 2003/86 about the family reunification of refugee unaccompanied children with their parents by means of visas (or residence permits) introduces an unquestionably positive obligation for the host Member State. The refugee unaccompanied children are entitled, under the conditions set out in this  directive, to have their first-degree relatives in direct ascending line reunified with them.

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By Jonas Bornemann, Research Assistant and PhD candidate, Chair of Public, European and International Law, Universität Konstanz 

In the 2017 State of the Union speech, Jean-Claude Juncker outlined his vision for the bloc’s future mode of integration. In this vein, the president expressed his confidence that time was ripe to align Member States’ commitments under EU law. Consonance should be attained in different fields, including prominently the Schengen Acquis. Thus, Juncker’s aspiration featured the Commission’s continuous insistence upon paving the way for Bulgaria and Romania into full Schengen membership. Identifying a window of opportunity, the president was determined to seize momentum in this regard and to do so ‘immediately’.

Besides this claim’s rigour, the final decision to lift restrictions in the implementation of the Schengen Acquis in Romania and Bulgaria, including the abolition of border controls with Schengen States, rests with the Council. However, since these Member States’ attempts to do so have been frustrated repeatedly, talk may prove cheap. Rather, one must wonder whether the absence of internal border controls – as ordained by Article 67 (2) TFEU – can be attained at Romanian and Bulgarian borders in the near future. Is Juncker’s call to grant access to the Schengen Acquis ‘immediately’ just a claim against long odds or does a ‘window of opportunity’ extend to Romania’s and Bulgaria’s chances to implement the entire Schengen Acquis as well?

Formulating a response to this question, the blogpost will employ two steps of investigation. It will first deliberate upon the legal framework facilitating the process of accession to full Schengen Acquis application with regard to Bulgaria and Romania. In particular, it will focus on respective criteria serving as prerequisite benchmarks to establish readiness for joining Schengen proper. Secondly, a compromise recently agreed within the Council will be examined. Against this background, Council Decision (EU) 2017/1908 informs an assessment whether Schengen States’ political reservations can be overcome. Does this measure facilitate the Schengen Acquis’ full application in Romania and Bulgaria, pushing open the alleged window of opportunity for those Member States’ Schengen ambitions?

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By Nula Frei, PhD, Senior Researcher, Institute of European Law, University of Fribourg & Constantin Hruschka, Max Planck Institute for Social Law and Social Policy, Munich

As a reaction to the “unprecedented migratory flows”, the EU Commission issued a Communication on establishing a new Partnership Framework with third countries under the European Agenda on Migration on 7 June 2016. The EU Partnership Framework essentially unites all actions of the EU Member States (individually and collectively) to combat smuggling and trafficking, to address “the fate of migrants and refugees” as well as to manage migration “in a sustainable way” and to fight against deaths at sea.

As part of the actions under the new Partnership Framework, measures to prevent irregular migration and irregular entries play a primary role (alongside with “fast and operational returns” and “specific and measurable increases in the number and rate of return and readmission”). These measures always take place in a legal grey zone, threatening to conflict with the obligations arising from international and European law and especially the prohibition of refoulement. While the European Court of Human Rights (ECtHR) has already provided a legal compass for measures at the borders and under the control of European states (see following paragraph), such guidance lacks for cooperation with third countries. The following article aims to provide such legal orientation, using the example of the central Mediterranean route.

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By Daniel Thym, Universität Konstanz 

Last year‘s general election was a game changer in German politics. The ‘grand coalition’ of Christian and Social Democrats, which had governed the federal republic from 2005-09 and 2013-17, lost considerably and won no less than 53.5 % of the vote (33 % for the CDU/CSU; 20.5% for the SPD). Moreover, a populist right-wing party entered the German Bundestag for the first time: the Alternative für Deutschland AfD which gained 12.6 % last September and continues to do well in opinion polls.

Disappointment on the part of the – not quite as ‘grand’ – coalition was one factor why it was difficult to set up a new government. Initial attempts to form a so-called ‘Jamaica coalition’ of the CDU/CSU, the Greens and the Liberals failed before Christmas, thus the two biggest parties assumed what they described as their ‘responsibility’ towards the general public to form another coalition to prevent a return to the polls, which would have benefited the populists and would have hurt attempts to reform the European Union. Ms Merkel will be re-elected as Chancellor on 14 March 2018. Continue reading »

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Edited by Professor Elspeth Guild, Queen Mary University of London and Dr Tugba Basaran, Centre d’Etudes sur les conflits, la liberté et la sécurité, Paris; visiting scholar Harvard University.

In this contribution to the negotiations of a UN Global Compact Migration that the reader will find by clicking here, a number of academics and practitioners based at different institutions and different countries have come together to provide their initial views and comments on the first draft. The objective of this document that does not reflect the position of the Odysseus Network as such is to provide an initial response to the Zero Draft from academia and civil society which examine what we consider to be the key parts of the Zero Draft. For each section examined we provide our personal views on the advantages and weaknesses inherent in the approach and some commentary explaining briefly the reasons for our positions. This paper is not intended to be a detailed examination of every aspect of the Zero Draft and should be read together with the Draft.

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Par Rostane Mehdi, Directeur de l’Institut d’études politiques d’Aix-en-Provence

L’excellent billet publié par notre partenaire français, le GDR sur le droit de l’espace de liberté, de sécurité et de justice, à propos d’un arrêt de la CJUE aussi important qu’étonnant ne concerne certes pas les questions d’immigration et d’asile, mais il s’inscrit parfaitement dans le débat sur le thème du “passivisme judiciaire” lancé lors de notre dernière conférence annuelle.

Les rapports de systèmes ont souvent été inscrits, par la doctrine, dans le registre sémantique de la polémologie ou de l’art militaire. Il convient, pourtant, de garder à l’esprit que les interactions entre ordres juridiques sont passées au filtre d’une approche faisant de la pacification des relations intra-européennes une fin politique et du juge l’un des instruments de celle-ci. Pour autant, nous accepterons, pour les besoins de la cause, de filer à notre tour la métaphore guerrière.

De toutes les manœuvres qu’une armée en campagne peut conduire, la retraite est probablement l’une des plus délicates à exécuter. L’histoire enseigne qu’elle doit être parfaitement maîtrisée au risque de se transformer en débâcle. Or, c’est bien la question que pose l’arrêt rendu le 5 décembre 2017, dans l’affaire C 42/17, M.A.S. En effet, interrogée sur les conséquences à tirer de sa décision Taricco, la Cour y opère un repli sur une position dont on peine à imaginer qu’elle fût « sûre et préparée à l’avance ». Continue reading »